Potential intervenors lined up in Penobscot Nation lawsuit over authority of river

Brian Swartz | BDN

Brian Swartz | BDN

Yellow leaves are the dominant color along the Penobscot River in Winterport (left) and Orrington (right) on Oct. 17, 2012. The Penobscot Nation is seeking an injunction to stop Maine game wardens from policing the river and preventing tribal members from engaging in sustenance fishing.

Former Attorney General William Schneider originally was named in the federal lawsuit, filed last August. The lawsuit since has been amended to name current Attorney General Janet Mills as the main defendant.

In the lawsuit, the Penobscots are seeking an injunction to stop Maine game wardens from policing the river and preventing tribal members from engaging in sustenance fishing. The tribe claims federal law grants them the right to such fishing and to police the waters of the river.

Also named as defendants in the lawsuit are Chandler Woodcock, commissioner for the Maine Department of Inland Fisheries and Wildlife; and Joel Wilkinson, colonel for the Maine Warden Service.

Seeking to become intervenors in the matter are a coalition comprising the municipalities of Brewer, Bucksport, East Millinocket, Howland, Lincoln, Mattawamkeag, Millinocket and Orono, the Guilford-Sangerville Sanitary District and the Veazie Sewer District, as well as the following companies: Covanta Maine LLC, Great Northern Paper Co., Kruger Energy, Lincoln Paper and Tissue, Red Shield Acquisition LLC, True Textiles Inc. and Verso Paper Co., according to a motion filed Monday in U.S. District Court in Bangor.

Those who receive intervenor status are allowed to be a formal party to the process, providing an opportunity for participation beyond what is typically afforded to the public, including the opportunity to present evidence under oath and cross examine other parties.

“The [discharge] permittees’ interest in this proceeding is to ensure that their operations will not be subject to regulation by the Penobscot Indian Nation,” the coalition stated in its motion.

The coalition further noted that the Penobscots assert in their action that their reservation includes the Penobscot River upstream of Indian Island, including the branches and tributaries and that the tribe is entitled to regulate the waters of the Penobscot River.

To that end, the coalition is seeking a ruling from the court confirming that the reservation does not include any portion of the river, citing the State Settlement Act and the Federal Indian Claims Settlement Act of 1980.

The coalition members — who are being represented by Matthew Manahan and Catherine Connors of the Portland law firm Pierce Atwood — each hold federal permits authorizing them to discharge water or treated wastewater into the Penobscot River or its tributaries, court documents say.

Also filed Monday by attorneys representing the coalition was a counterclaim seeking a declaration that the Penobscots’ reservation does not include the waters of the river.

Kaighn Smith Jr., an attorney with the Portland firm Drummond Woodsum, is representing the tribe. He declined comment on the case last fall and could not be reached for comment Tuesday morning.

The state — the defendant in the case — has consented to the intervenor request. It was not clear early Tuesday afternoon if the Penobscot National has taken a position with regard to intervenors.

Neither Manahan, Connors nor Smith could be reached for comment on Tuesday. Penobscot Tribal Chief Kirk Francis also could not be reached.

In other movement in the case, Deputy Attorney General Paul Stern on Friday filed the state’s counterclaim with the court. In the filing, the state upheld its interpretation of state and federal laws relating the the nation’s jurisdiction over the Penobscot River.

The state further argued that state officials have not prevented, or attempted to prevent, members of the Penobscot Nation from “taking fish from the waters of the main stem of the Penobscot River for individual sustenance.

“The controversy here exists because the Penobscot Nation warden service has confronted non-members on the waters of the main stem of the Penobscot River and demanded that non-members purchase for access to the Penobscot River” and pay for a Penobscot Nation member guide, Stern wrote. He called the measures “discriminatory because tribal members do not pay for hunting or fishing permits nor pay for Penobscot Nation guides.”

According to previous news stories from the Bangor Daily News, the 1st Circuit Court of Appeals ruled in 2007 that the state had authority to regulate the water quality of rivers that run through tribal lands but Manahan said that decision did not resolve questions about the geographic scope of Penobscot territory or whether the tribe also had rights to regulate its waters, wherever they may be.